Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court County of Ventura No. CR30442. Bruce A. Clark, Judge.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Chung L. Mar, Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Channa P. Ruberoe was convicted by jury of three counts of performing lewd acts on a child. (Pen. Code, § 288, subd. (a).) With respect to the third count, the jury found true an allegation that appellant engaged in substantial sexual conduct. (§ 1203.066, subd. (a)(8).) The trial court sentenced appellant to the upper term of eight years in state prison for the third count, and consecutive two year terms for the remaining two counts, for a total term of twelve years. The court ordered appellant to pay direct restitution to his victim in the amount of $19,000 and to the victim's mother in the amount of $30,000.
All statutory references are to this code unless otherwise stated.
Appellant contends that the trial court violated his constitutional right to a jury trial by imposing an upper term sentence based on aggravating facts not found by the jury. Appellant also contends that defense counsel rendered ineffective assistance of counsel by not objecting to the direct restitution awarded to the victim and to the victim's mother. He argues that the victim's restitution award was unsupported by evidence and that the mother's award was unauthorized by law. We agree that the restitution awarded to the victim's mother was unauthorized. We otherwise affirm.
Factual and Procedural Background
Appellant sexually molested his 10-year-old stepdaughter twice on April 1, 1992, and once on April 2, 1992. She reported the conduct to her mother on the following day. A first trial resulted in a hung jury, and the case was retried. On July 22, 1993, the jury found appellant guilty of all counts and found the special allegation to be true.
The court set a sentencing hearing for August 31, 1993, and remanded appellant to custody. The prosecutor expressed concerns that appellant might flee the jurisdiction, because appellant was a dual resident of the United States and Sri Lanka and his permanent residency hearing was approaching. The court set bail and ordered appellant to surrender his Sri Lanka passport upon posting bail. On July 24, 1993, appellant surrendered his passport and posted bail. Appellant failed to appear for sentencing, and a bench warrant issued. Appellant had fled the United States.
More than 12 years later, appellant was extradited to the United States. He was booked into the Ventura County Jail on February 17, 2006. On April 19, 2006, the court conducted a sentencing hearing. The victim testified that the molestation caused her to suffer hyper-vigilance, insomnia and flashbacks. She testified that she spent "many years in therapy." She said she grieved the loss of her innocence and childhood. She testified that appellant threatened her and her family because she reported the abuse. She testified that he told her repeatedly that he would kill her before her 18th birthday and that he would kill her grandmother while she and her brother watched. She testified that as a result of his threats she had "spent literally half [her] life looking over [her] shoulder." She testified that she had researched sexual abuse and dedicated her life to acting as an advocate for children. She did not testify to the expenses she had incurred for therapy.
In a statement given for the presentence report, the victim requested $19,000 in restitution "for approximately five to six years of therapy sessions." According to the presentence report, the victim felt that she suffered from post traumatic stress but had not been able to afford ongoing therapy. The report also stated that the victim's mother requested $30,000 in restitution "for 3 1/2 years of therapy, attorney's fees, and approximately one year of therapy for her son . . . ." The mother did not testify at the sentencing hearing .
Defense counsel argued in mitigation that this was appellant's first offense and that appellant denied making any threats. The court stated, "Well, if defendant were seeking mercy he should not have fled the jurisdiction and avoided being returned to Ventura County for 14 years. I agree with the [P]eople." The court imposed the sentence described above, stating "I do so because he, the defendant, illegally interfered with the judicial process by fleeing from the United States and avoiding extradition for over ten years." The court did not identify any other aggravating factors upon which it relied. The court awarded restitution in the full amounts requested. Appellant has no prior criminal convictions.
Upper Term Sentence
Appellant argues that the upper-term sentence for count three violated his constitutional rights to trial by jury and proof beyond a reasonable doubt. (Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856].) The trial court imposed the upper term sentence based on the fact that appellant illegally interfered with the judicial process by fleeing from the United States and avoiding extradition for more than ten years. (Cal. Rules of Court, rule 4.421(a)(6).) Appellant admitted that he fled the court's jurisdiction, as reported in the presentence report. "[I]mposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (People v. Black (2007) 41 Cal.4th 799, 816.)
Even if the court's reliance on the admission in the presentence report had been erroneous, the error would be harmless beyond a reasonable doubt. The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Sandoval (2007) 41 Cal.4th 825, 838.) The error is harmless if "beyond a reasonable doubt . . ., the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . ." (Id. at p. 839.)
The fact that appellant interfered with the judicial process is irrefutable. Determination of the fact did not require a quantitative or comparative evaluation of the facts. The fact that he failed to appear for his sentencing hearing in 1993 is recorded in the court's minute order. The fact of his return to the Ventura County Jail more than 12 years later is recorded in the warrant certification of the Ventura County Sheriff's Department. We are satisfied that the jury, if required to do so, would have found true beyond a reasonable doubt the aggravating factor justifying the upper term.
We reject appellant's argument that this court cannot determine whether his jury would have found flight to be true because the jury was discharged by the time he fled. Appellant became a fugitive after he was convicted and before he was sentenced. He is solely responsible for this state of affairs. No one is permitted to take advantage of his own wrong. (Civ. Code, § 3517; People v. Seely (1946) 75 Cal.App.2d 525, 527 [a defendant who is a fugitive from justice loses the right to insist upon a speedy trial]; Ortega-Rodriguez v. United States (1993) 507 U.S. 234, 242 [a defendant who escapes while his appeal is pending and remains at large loses his right to appeal].)
$30,000 Direct Restitution Award to Mother of Victim
Appellant contends, and respondent concedes, that the award of direct restitution the mother of the victim violated the prohibition against ex post facto laws by retroactively increasing the punishment for appellant's crimes. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. 1, § 9; People v. McVickers (1992) 4 Cal.4th 81, 84.) We agree. Currently, Penal Code section 1202.4, subdivision (k)(1) authorizes an award of direct restitution to the parent of a victim, but that provision was not in effect when appellant committed the underlying offenses in 1992. (Stats. 1994, ch. 1106.) The award must be stricken.
$19,000 Direct Restitution Award to Victim
Appellant contends that his trial counsel rendered ineffective assistance of counsel because he did not challenge the proof of the victim's claimed therapy expenses. Appellant argues that the victim's testimony at the sentencing hearing did not establish whether she paid for the therapy or whether it was included in the amount awarded to her mother. We conclude that counsel did not render ineffective assistance because substantial evidence presented at the sentencing hearing supported the award and counsel made a rational tactical decision not to challenge the amount, which may have increased with further investigation and proof.
"The burden of proving ineffective assistance of counsel is on the defendant." (People v. Babbitt (1988) 45 Cal.3d 660, 707.) "First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687.) In determining whether counsel was deficient, we measure counsel's performance "against the standard of a reasonably competent attorney . . . ." (People v. Kipp (1998) 18 Cal.4th 349, 366.) The defendant must demonstrate that "the omission or omissions were not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make." (People v. Williams (1988) 44 Cal.3d 883, 936.) A defendant must prove prejudice that is a demonstrable reality, not simply speculation. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
A victim has a constitutional right to restitution "in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary." (Cal. Const., art. 1, § 28(b).) This constitutional mandate is implemented by section 1202.4. The trial court must use "a rational method" to compute restitution. (People v. Harvest (2000) 84 Cal.App.4th 641, 653.) A claim for restitution must be supported by evidence. Mention of the claim in the probation officer's report, "may satisfy notice requirements for due process [citation], but it cannot take the place of evidence." (Ibid.) The standard of proof at the restitution hearing is preponderance of the evidence. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) We review an award of restitution for abuse of discretion, affirming if there is substantial evidence to support the award. (Ibid.)
Substantial evidence supported the award. The court awarded $19,000 to the victim for five to six years of therapy, an award of about $3,000 a year. The victim testified that she had been in therapy for many years. She gave this testimony when she had been an adult for six years. The court could reasonably infer that the victim personally incurred the expense of six years of therapy, and that these amounts were separate from the amounts the mother incurred during the victim's eight years of minority following the molestation. Counsel's performance was not deficient, any omission was the result of a reasonable tactical decision and appellant has demonstrated no prejudice.
The order awarding the victim's mother $30,000 in direct restitution is stricken. The trial court shall forward an amended abstract of judgment to the Department of Corrections. As modified, the judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.